A 5-4 vote now officially bars police from being able to access data like call listings and location without a warrant.

by David G. Savage, Los Angeles Times
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June 22, 2018

The U.S. Supreme Court is being asked to shield a California deputy who killed a 13-year-old carrying a pellet gun. (Dreamstime/TNS)
TNS

(TNS) — WASHINGTON, D.C. — In a victory for privacy in the digital era, the U.S. Supreme Court ruled Friday that the Constitution protects tracking data from a cellphone, requiring police to have a search warrant to obtain cell tower records that show a person’s movement for days or weeks.

The justices, by a 5-4 vote, said the 4th Amendment protects the data from being searched without a warrant, even though these records are collected and held by a private company, not the government.

In Carpenter vs. United States, the court ruled for the alleged leader of an armed robbery gang in the Detroit area whose movements were tracked for 127 days using data from his cellphones.

The ruling reflects the high court’s increasing concern over the vast amount of private information that can be obtained and stored through digital technology — and often without the knowledge of the user.

It is one area where the progressive left and the libertarian right are in agreement, and that too is reflected among the justices.

Six years ago, the high court voted 9-0 to set aside the conviction of a Washington area drug dealer whose daily movements had been tracked by a GPS device that police had secretly attached to his vehicle. Four years ago, the justices ruled unanimously in a San Diego case that the police need a search warrant before they may download the contents of a suspect’s smartphone.

But despite those unanimous votes, the justices had been uncertain about extending privacy rights to business records and other information that customers routinely turn over to others.

In the past, the court has drawn a sharp distinction between what is private under the law and what is not. For example, talking on a phone is considered private, so police must obtain a search warrant before they may “wiretap” or otherwise listen to a call. However, the dialing records of phone calls were considered a business record and not private, so police may obtain these records directly from a phone company.

The effect of the ruling should be limited in California, however, since the state legislature in 2015 adopted a law that requires investigators to have a search warrant before they can seek cellphone records.

The case decided Friday arose from a series of nine armed robberies of Radio Shacks and T-Mobile stores in Michigan and Ohio in 2010 and 2011.

Timothy Carpenter was alleged to be the ring leader, having been identified by an accomplice who was under arrest. To confirm Carpenter’s involvement, the FBI sought data from cellphone towers that would allow investigators to track his movements for 127 days. When Carpenter used his cellphone, it connected to a nearby tower, giving police the information that helped convict him.

Under a federal law known as the Stored Communications Act, investigators may obtain these records if they go before a judge and show they have facts demonstrating the phone data are “relevant and material to an ongoing criminal investigation.” However, they were not required to obtain a search warrant based on “probable cause.” This is a slightly higher standard.

Police would almost certainly have obtained a warrant in Carpenter’s case because they had ample evidence to show he was involved in crime.

At his trial, Carpenter sought to have the cell tower data excluded on the grounds it arose from an “unreasonable search” in violation of the 4th Amendment. A federal judge denied the motion, ruling the defendant had “no reasonable expectation of privacy in the cell tower data.” The court of appeals agreed on the grounds that business records — from checks held by a bank or dialing records held by a phone company — are not private and may be obtained by police investigators.

With many educational organizations shifting their entire schedules to distance learning tools or full virtual environments indefinitely, never has the statement “we are all in this together” been more poignant.